White House to decide if treaty for the blind moves forward

Beginning Wednesday, June 15, the World Intellectual Property Organization (WIPO) the specialized UN agency for intellectual property, begins nine days of negotiations on possible copyright treaties. The first three days will be spent on a proposed treaty on exceptions to copyright for persons who are blind or have other disabilities. The proposed treaty would bind parties to creating minimum exceptions in copyright laws to facilitate access to copyrighted works by persons who are blind, visually impaired or have other disabilities, and permit the sharing of copies of such accessible works across borders.

At present, most high income countries have robust exceptions in copyright laws for persons with disabilities, but do not allow the export of those works to other countries with similar exceptions. Many developing countries have no such exception, or one that is very limited, for example, to only cover Braille in some countries. In 1982, WIPO and the United Nations Educational, Scientific and Cultural Organization (UNESCO) recommended model exceptions in copyright law for persons with disabilities, and in 1985, a WIPO/UNESCO expert called for a treaty to facilitate the cross-border sharing of accessible works. After decades of inaction on those recommendations, WIPO took up the issue in 2008, and has been involved in a surprisingly bitter and heavily lobbied debate ever since.

Publishers have opposed a treaty for disabilities on the grounds that it will set a precedent that copyright treaties can be designed to address problems facing consumers, rather than just expanding the rights for copyright owners. While the exception for persons who are blind or have other disabilities has almost no economic impact on publishers, they are concerned about possible expansions of copyright exceptions for libraries or education — both major markets for publishers.

The White House and the United States Patent and Trademark Office (USPTO) have been lobbied heavily on the treaty for the blind issue. European and Canadian owned publishers argued that WIPO should kill the treaty proposal, in favor of a non-binding recommendation — similar to the one offered in 1983 by UNESCO and WIPO.

Meanwhile, next week WIPO will focus on proposals to other treaties — that expand copyright and related rights. One would give a new intellectual property right to broadcasters, cable companies, satellite television and radio, and webcasters for simply transmitting copyrighted works owned by others. Another treaty deals with “performers” rights. In the cases where corporate interests are stake, no one proposes a soft non-binding solution — a treaty is the only option under consideration.

In 2008, the Bush administration opposed a treaty for the blind. In early 2009, the Obama administration also opposed a treaty for the blind. But by December 2009, the Obama administration seemed to have changed its mind, and announced it was “open” to a treaty. But since 2009, three key treaty supporters left the Obama administration — Susan Crawford and Andrew McLaughlin in the White House and Arti Rai at USPTO.

Since the departure of Crawford, McLaughlin and Rai, the USPTO has been aggressively but quietly trying to kill the treaty, and pressuring treaty supporters, including both NGOs and governments, to settle for a soft recommendation as a “first step” and to wait several more years before taking the treaty proposal up again.

Europe is divided on the treaty. Some countries, such as the UK and a few northern European countries support the treaty, and the European Parliament recently voted to support the treaty. But France and Germany oppose the treaty, and so has the European Commission.

At this point, the fate of the treaty is largely in the hands of David Kappos, the former IBM executive now running the USPTO. If Kappos supports the treaty, opposition will fade, and the treaty will move ahead to a diplomatic conference.

For a detailed history and background on the negotiation, see: Background and update on negotiations for a WIPO copyright treaty for persons who are blind or have other disabilities.